Transgender Day of Remembrance

On November 28, 1998, Rita Hester was murdered.

She was stabbed over 20 times in the chest in her own apartment.

Her murder remains unsolved.

—

Today marks the 13th annual Transgender Day of Remembrance, sparked by outrage over Rita’s murder and a desire to bring attention to the violence faced by members of the trans community, previously overlooked by the media and law enforcement officials.

Sadly, Rita’s murder is one of hundreds of crimes of violence against transgender people that occur each year – one of many murders of trans folk that remain unsolved, one of many cases not charged as a hate crimes, and one of many stories cut short.

Last November, An Act Relative to Gender Identity passed in the House and Senate in Massachusetts – extending civil rights and hate crimes protections to the state’s transgender residents in areas of employment, housing, credit/lending, and public education and updating Massachusetts’s hate crimes laws to include gender identity.

The passing of comprehensive hate crime legislation is a step in the right direction – but it’s just a step. So this November, we remember those we have lost to senseless violence in the past year during the Transgender Day of Remembrance.

Events begin tonight, November 15, 2012 and extend through the week. For Massachusetts event info, please visit MassTPC’s website.

Related articles

• GLAAD & MTPC Release New Vids in “I AM: Trans People Speak” Series (lezgetreal.com)

Think Purple – October is Domestic Violence Awareness Month

I’m sure you’ve heard that October is Breast Cancer Awareness Month and are in the midst of purchasing every pink product put out by the gazillions of companies hoping to reap the benefits of increased sales based on the teensy share of their profits that will go towards cancer research, but did you know that October is also LGBT History Month?

And National CyberSecurity Awareness Month? And Filipino American History Month? And National Bullying Prevention Month? And National Arts and Humanities Month? And National Down Syndrome Awareness Month? And National Healthy Lung Month?

Oh and also National Domestic Violence Awareness Month?

No? I know it’s hard to keep track of all the things we’re supposed to be aware of in any given month – I mean, I am barely aware of my own surroundings. (Seriously, I have had a poster hanging in my office advertising a luncheon with a prominent feminist academic since 2008 and only last week did I notice that this prominent academic also happens to be a friend’s sister.) But I will be the first to point out that it’s pretty shitty that all these other things get brushed under the rug by the power of pink.

Especially when some of these things are already regularly brushed under the rug. Like domestic violence.

See the thing is that we live in a culture where sex and violence have become horrifyingly and inextricably linked. I’m not talking about fuzzy handcuffs and 50 Shades fantasies; I’m talking women being equated to prey and this system of beliefs that exist that encourages male sexual aggression and supports violence against women. The message that’s being blasted that violence is seen as sexy and sexuality is seen as violent.

Think I’m being an alarmist? Did you see the most recent cover of French Vogue?

Sure, for some this harkens thoughts of Christian Grey and consensual kink, but the image by itself is irresponsible at best and downright dangerous at its worst. In an open letter to Conde Naste, anti-domestic violence groups write “This truly disturbing image of a woman being choked sends a dangerous message to anyone who sees this magazine – that choking is a sign of passion rather than violence.”

And images like this one, together with the constant connection between sex and violence, are doing a bang-up job of desensitizing society.

Take Mandy Stadtmiller ’s recent conversation with Naomi Wolf for xoJane about Wolf’s new book, Vagina. Wolf talks about how desensitized people have become to violence: “So, with rape jokes, if you’re in an environment where your vagina is being demeaned, humiliated, targeted, or at Yale, where the boys were chanting, “No means yes, and yes means anal,” or with comedians. These are strategic; they may not be conscious, but they’re strategic. Because it’s stressing out your autonomic nervous system all day long, in such a way that, over time, it dials down your well-being sexually, and it dials down your well-being in other ways; because if you want to target a woman’s brain, you target the vagina.”

Or the most recent “rape joke” fiasco, the flyer posted in a men’s dorm room bathroom at Miami University offering pointers on the “Top Ten Ways to Get Away with Rape” including roofies and breaking and entering.

So maybe it shouldn’t be shocking to me that we’ve all become so desensitized that we’re ok with linking violence to sex or that we continue to live in a culture where we perpetually blame the victim. Just last week, I was going over a case that established that consent can be withdrawn during sex and students hemmed and hawed over this finding. Did she really say no? Maybe she was just feeling guilty because he wasn’t her boyfriend?

Wait.

No. I don’t want to live in a world like this and neither should you. Because lurking behind rape culture, hiding in the victim blaming, and masquerading as something that doesn’t happen to normal people exists domestic violence.

Because every 9 seconds in the US, a woman is assaulted or beaten. Around the world, at least one in every three women has been beaten, coerced into sex, or otherwise abused in her lifetime. Because every day in the US, more than 3 women are murdered by their husbands or boyfriends. Because on average, 24 people PER MINUTE are victims of rape, physical violence, or stalking by an intimate partner.

October is Domestic Violence Awareness Month. Let’s stop ignoring the problem.

For resources, please visit the following safe-spaces:

If you need immediate assistance, dial 911.

The National Domestic Violence Hotline: 1-800-799-SAFE (7233) or http://www.thehotline.org/

Rape, Abuse, Incest National Network: 1-800-656-HOPE or http://www.rainn.org/

NFL: 1, Congress: 0

Pre-season football has started again and here in New England, we are ALL ABOUT IT. I won’t pretend to know anything about football, but growing up in Boston means that the Patriots are a constant background buzzing, even if you aren’t a die-hard fan.

You know what I mean – you can identify Belichick’s gruff mumble “well, uh, we did our best but we’ve got some things to work on and we’ll continue to address that” faster than the opening beats of Call Me Maybe, you have a grubby old logo Patriot’s hoodie in your dresser just waiting for cold fall games, and you can still remember where you were the night Adam Vinatieri kicked the field goal in the snow bowl.

And it is with that constant buzz of Patriots that we carry on with our daily lives, any Patriots-related news item peaking our interest. Which is why the news of Chad “OchoCinco” Johnson’s arrest for assaulting his wife and his subsequent drop from the Dolphin’s roster is even on my radar.

I won’t pretend to know why he legally changed his name to Ochocinco, although I have a vague idea that it has something to do with his number on whatever team he played well for before coming to the Patriots. I won’t pretend that I know his statistics while he played for the Pats (or if I did, what they mean), but I do know that when I did see him play, no one seemed to be impressed. And I won’t pretend to have known that he ended up being picked up by the Dolphins.

But I do know this: he was arrested for head-butting his wife on Saturday during an argument. And then, the Dolphins cut him from the roster. It’s a swift message from the Dolphins that Johnson isn’t worth the baggage he comes with, but it can also be viewed as a message that domestic violence will not be tolerated by the organization.

If only Congress could act as quickly as the Dolphins to send the same message. In April of this year, I blogged about the Reauthorization of the Violence Against Women Act. To date, Congress has still not signed the VAWA into law. In fact, unless something changes, it seems unlikely that the VAWA will be signed anytime soon. You see, members of Congress are currently home with their families, possibly until after Labor Day… and then Congress will be in session for just a few weeks in September, heading home until after the elections.

The Violence Against Women Act was first passed in 1994. Since its passage, programs at the state and national level have dramatically improved the national response to domestic violence, sexual assault and stalking. Reporting of domestic violence has increased as much as 51%, all 50 states have passed laws making stalking a crime and strengthened rape laws, and intimate partner homicide has decreased by 34% for women and 57% for men.

But VAWA needs to be reauthorized in order to continue to build progress towards ending domestic violence. With the reauthorization, funds will be available to meet the unmet needs of domestic violence victims, including the 25% of victims who remain on wait lists for crisis center services. Not only that, but the reuthorization of VAWA will include protections and services for LGBTQ victims who are dramatically underserved and often discriminated against when seeking services.

It’s time for Congress to send the same message that the Dolphins have – domestic violence will not be tolerated.

So talk to your Congress persons and put pressure on them to pass a comprehensive Reauthorization of VAWA. For information on the current status of the reauthorization, a helpful tool kit for talking to your Congress person, personal stories, and statistical information, check out the National Task Force to End Sexual and Domestic Violence Against Women’s 4VAWA website: http://4vawa.org/

Related articles

• Dolphins’ Johnson arrested on domestic violence charge (sportsillustrated.cnn.com)
• Chad Johnson Arrested For Domestic Violence Against Evelyn Lozada: REPORT (huffingtonpost.com)

The Legacy of Title IX

“No person in the United States shall, on the basis of sex, be excluded from  participation in, be denied the benefits of, or be subjected to discrimination  under any education program or activity receiving federal financial assistance” — Title IX

Every semester I suggest Title IX as a possible research paper topic for my Gender and Society class.  My students have come to age during a time where the passage of laws like Title IX feel like ancient history to them. Many of my students have had the good fortune to be born into white, upper middle class families and for them, inequality is something that is rarely felt.

And yet, every year a group of students chooses to examine Title IX and at the end of the semester presents lots of interesting and compelling information dealing with the history of the legislation and it’s impact today.

There are commonalities in the presentations:

Female athletes often discuss the positive impact of Title IX at our school – the funding for their teams, the financial support offered to them for good grades and athletic prowess, and the positive message sent that all sports are equal. (Well, except for hockey. We have a really outstanding male hockey team.)

Female students in science and engineering fields generally talk about the expanded opportunities for female studies in the STEM majors – the outreach in high school for female scholars, the opportunities available at the college level, and the mentoring circles that have developed for girls in STEM fields.

And finally, male athletes usually take a look at gender and professional sports. With equality happening at the college level, they examine the seeming inequality at the professional level. Often, they are unable to come up with answers – why does the playing field seem to remain unequal at the professional level?

The message that most student groups convey at the end of their research is how powerful the legacy of Title IX has been.

For these students, for most students, being unaware of the law is the biggest triumph of Title IX.

Related articles

• Lisa Leslie: The First Daughter of Title IX (huffingtonpost.com)
• Title IX, Then and Now (blog-aauw.org)
• Women, Equality, and Education: Title IX Turns 40 (with images) – EdweekComm – Storify (girlsplaybaseball.wordpress.com)

Untangling Same-Sex Marriage, Step 3: Repeat

When we left off, we had discussed the interaction between state and federal law and the levels of review. In the interest of really hammering home my points, I’m going to kinda, sorta, maybe repeat myself a little here.

That’s ok though. Lather, rinse, repeat, right? We’re on repeat now.

Deciding Constitutionality

Remember that DOMA is broken up into three different sections.  Currently, challenges to the constitutionality of DOMA focus on Section 3 which reads “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

When we try to figure out if a law is constitutional, we look to see if it works under all of the different parts of the federal Constitution. In this case, DOMA feels unfair, right? Persons who want to marry someone of the same sex are being treated differently than persons who want to marry someone of a different sex.  And treating people differently isn’t allowed under a provision of our Constitution called the Equal Protection Clause.

The Equal Protection Clause is found in the 14th Amendment and says that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Over the years, the Supreme Court has fleshed out what this means in a variety of different cases but the easiest way to remember what the EPC stands for is to look back at the famous line from Brown v. Board of Education – “separate but equal is inherently unequal”.

Level of Review

In our last installment, I talked about the three different levels of scrutiny used to determine constitutionality.  Historically, the Supreme Court has used the lowest level of review when laws are based on sexual orientation. This means that those laws are usually found to be constitutional.

This is important because the Court is generally bound by prior precedent – meaning they’ll have to use rational basis review when determining whether DOMA is constitutional, unless they can come up with a really good reason not to.

And that really good reason seems to be that sexual orientation is similar to gender, in that it is a quasi-suspect classification. As such, laws based on sexual orientation will be subject to a heightened level of review – the middle, intermediate scrutiny level of review. And as a result it will be just a little bit harder for that law to be found constitutional.

And that’s where we’re headed. To our final determination – is this law constitutional?

Let’s Talk About Sex, Baby

For real – let’s spend some time talking about sex because I’ve been getting the feeling that we don’t talk about it enough.

Yesterday, while I was simultaneously texting two different women information about Plan B, using condoms, and other birth control methods I started wondering why so many people, both women and men, come to me for advice about practicing safe sex. Part of me would like to think that people view me as some sort of sex goddess, but I’m pretty certain it’s because people view me as that lady who is always talking about access to birth control and the legislation that affects that access.

Just casually lecturing on contraceptives in someone’s living room. Seriously.

If you’ve been watching the news, or even checking out your facebook , you might know that there is a whole lot of hubbub surrounding access to birth control, sex-education, and policing sexual norms. Which, at first glance, seems kind of weird since its 2012… but looking back at almost all of my recent conversations about sex and contraceptives, it’s not all that shocking.

We live in a culture that sells sex – heterosexual, misogynistic sex. Just look at the phenomenon that is Fifty Shades of Grey - a novel that explores a heterosexual, BDSM relationship where the virgin female submits to the experienced and wealthy older man, signing a contract giving up her free will to him.

Sure, we’re talking about sex more as a result of the book… but we’re talking about a sexual relationship that simply solidifies the old norms we’re used to: Man = owner | Woman = object. And that message doesn’t just come from the media or pop culture, it comes from our government too.

You see, in the past our government has taken an almost paternalistic role, creating legislation that was meant to define morals for the country. Laws were enforced and upheld because the courts believed that it was the job of the government to establish sexual norms for citizens. Think about Griswold v. CT where the Supreme Court told us that only married people had a right to access contraceptives. In that decision, our government was basically telling us that only married persons should be having sex. (The right to access contraceptives was later extended to single persons in Eisenstadt v. Baird in 1972).

And morals legislation is still being enacted and funded today.

Look at the government’s approach to teen sex. Last month, the Department of Health and Human Services added an abstinence-only education curriculum to the list of 28 evidence-based pregnancy prevention programs that the Obama administration will fund. In fact, curriculums that teach abstinence as the singular method of birth control retained a $55 million budget in 2012, a full third of the $176 million available during President George W. Bush’s last year in office. This seems to indicate that the government continues its paternalistic role – indicating that since teens should not be having sex, they don’t need to be educated about safe-sex practices.

Or think about the government’s approach to homosexual sex.  Anti-sodomy statutes are still on the books in Idaho, Utah, Michigan, Virginia, North Carolina, South Carolina, Florida, Alabama, Mississippi, Louisiana, Montana, Kansas, Oklahoma, and Texas even though a 2003 Supreme Court decision declared anti-sodomy statutes unconstitutional. It should be noted that anti-sodomy statutes don’t just apply to homosexual sex – they are meant to bar all non-procreative sex.

If we pair our media’s views of sex (woman as objects/vessels waiting to be filled) and our government’s view of sex (no one should have it unless they are adult, married, and straight) it’s no wonder that people have no idea where to get real information on sex.

But I’m here to help.

The realest, most important thing you need to know about sex is that it’s entirely your choice – whether or not you want to be having sex, what type of sex you want to engage in, who your partners will be… it’s all your choice. Trust your mind and your body.

The other thing you really need to know is how to protect yourself. Safe sex is the only sex you should be having – would you bungee jump without a bungee? No… it’s not safe. For accurate and comprehensive information on all of your birth control options, check out Planned Parenthood’s handy guide to contraceptives.

And that’s it. Talking about sex wasn’t so scary or scandalous, was it?

What do you think the approach to sex and sexuality is here in the US? Elsewhere? What do you think of access to contraceptives issues? Morals legislation? 

Untangling Same-Sex Marriage: Step 2 – Try a Leave in Conditioner

Hello, lovers! I know I have been neglecting you but it was the end of the semester and contrary to popular belief I do not just chuck students’ papers up a flight of stairs and assign grades according to what stair each paper lands on.  Instead, I grade like this:

When we left off, we were talking about the interaction between federal and state law, the Full Faith and Credit Clause, and the Defense of Marriage Act. We begrudgingly decided that North Carolina’s Amendment 1 was valid under federal law because of DOMA, but had some questions about whether or not DOMA was constitutional under the Full Faith and Credit Clause of the federal Constitution. So that’s where I’ll pick up today – who figures out if a law is Constitutional? And how do they figure that out?:

Deciding the Constitutionality of a Law

Our federal Constitution is a pretty old document that has lasted a long time. One of the biggest reasons our Constitution still works today is that it’s incredibly vague. I mean sure there are some provisions that are very specific (ex.: NO ALCOHOL!… oh wait, YES ALCOHOL!) but most of them are open to interpretation. And it’s the judicial branch’s job to interpret the Constitution(s) and all of the laws.

System of Checks and Balances -Because the US is supposed to work as a system of checks and balances, all of our laws are pawed at by all three branches.  The Legislative Branch (Congress… you know, those people who are always on C-SPAN, usually talking about incredibly boring things) gets to write the laws, then the Executive Branch (Oh whatup Obams) gets to enforce them, and the Judicial Branch (Supreme Court… judges, robes, sit for life) reviews the laws.

View of Capitol Hill from the U.S. Supreme Court Česky: Pohled na Kapitol z budovy Nejvyššího soudu Spojených států (Photo credit: Wikipedia)

Judicial Review – The judicial branch gets to review the laws under Marbury v. Madison, an incredibly old case. This becomes a big deal when we think about the fact that the members of the Supreme Court are chosen by the President and then get to keep their jobs as justices for as long as they want. They are the leave-in conditioner of our government.

Now that you’ve been reminded of your old US civics lessons, we’ll start to figure out what happens when Congress passes and the President enacts a law that feels wrong.  How does a law get declared “unconstitutional” by the Supreme Court?

Federal Question/Power to Choose – Being a Justice on the Supreme Court is a pretty sweet gig.  You get to keep your job for as long as you want it AND you get to choose which cases you want to hear. The Supreme Court only hears a limited number of cases each year and in order to even be in the running the issue generally has to involve some sort of “federal question” which usually means we’re asking whether a state or federal law works and is valid under the federal Constitution.

Levels of Review -Once the Supreme Court decides to hear a case, they are bound by prior decisions made by the Court and the Constitution.  But remember, the Constitution is really vague so the Supreme Court has historically been able to interpret provisions of the Constitution in a bunch of different ways and it’s up to the current sitting members of the Court to stick to those old interpretations unless they have a really good reason for changing their minds.

In past cases, the Supreme Court has laid out levels of judicial review to be used when determining the constitutionality of a law:

• Rational Basis – lowest level of review. Use it for your general, everyday laws that don’t have suspect classifications.
• Intermediate Scrutiny – middle of the road level of review.  Use it for laws that have “quasi-suspect” classification. (What is quasi-suspect? Maybe gender… maybe marital status?)
• Strict Scrutiny - highest level of review. Use it for laws with “suspect” classifications, like race… and maybe sexual orientation.

You might be wondering why these levels of review are important. They’re kind of a big deal because it’s hard for laws to survive a strict scrutiny analysis and it’s usally pretty easy for laws to survive a rational basis analysis.

Making the Decision -The Supreme Court will hear a case and lets everyone chime in with their thoughts. Then they deliberate. Then they write a decision and usually tell us if a law works. If the law is deemed Constitutional, there’s pretty much nothing else that can be done. I mean, you can riot. If the law is deemed unconstitutional, then laws enacted pursuant to that law might also be deemed unconstitutional.

But it’s important to keep in mind that the decision belongs to the Supreme Court. Not to the President. Not Congress. So, Obama supporting same-sex marriage is awesome… but he’s not the deciding vote. And Congress writing and passing DOMA is lamesauce that invalidates the love and committment of people across the US… but they just wrote the law and the Supreme Court gets to review it.

And that’s that.  Next time, we’ll finally answer the big question (Is DOMA Constitutional), but until then, answer me this: Do you think the Supreme Court is given too much power? What about the fact that they sit for life? Don’t leave in conditioners make you nervous?

Untangling Same-Sex Marriage: Seems Harder than Untangling my Hair

The last few days have certainly been a whirlwind of emotions. On Tuesday night, while trying to catch up on The Killing (seriously, watch it), I cried into my mug of wine watching the Twitter machine spit out the sad news that North Carolina voters passed Amendment 1, amending their state Constitution to include the following language: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”

Then on Wednesday, while I hid in my office trying not to think about how cruel and stupid those NC voters were, I was bombarded with texts and messages telling me that Obama released a statement supporting gay marriage.  This time, I cried into my Venti Skinny Vanilla Latte and ridiculous pile of papers that need to find homes.

And last night, after hashing out some of these emotions and various thoughts about the implications of North Carolina’s amendment and Obama’s statement with the absolutely fabulous Women and Gender Studies Department, I finally stopped crying and started thinking about what all of this means.

The Thinking Man sculpture at Musée Rodin in Paris (Photo credit: Wikipedia)

I’m going to break it down for you, FeministLawProf style, but first, I’d be remiss if I didn’t share the words of a good friend and smart lady. To a lot of us, this whole “gay marriage” brouhaha is seems to be bordering on insanity and I think my Manhattan gal-pal hit the nail on the head when she said:

“Sometimes I think I have some sort of deeply ingrained liberalism having been raised in Boston and living most of my adult life in New York city and therefore generally being surrounded by like-minded people that share my outlook on these things.  And then I think no… This isn’t about being liberal. It’s being human. It’s about two people loving each other so much that they want to commit their lives to one another. And if they happen to be lucky enough to have found that, they should be able to be together spiritually and legally.”

I’d love to end this blog there. But that wouldn’t do justice to how complex this simple concept of love and committment has become as a result of our system of laws here in the U.S. So get ready, there’s some legal stuff comin’ at ya – in a couple different posts. Today we’re going to cover the first prong of the legal chaos that is the state of marriage, starting with:

The Interaction Between Federal and State Law

Constitutions – There are 51 Constitutions in the United States.  But, the Federal Constitution is the supreme law of the land. Why? Because when our founding daddios wrote it, they said so. What this means is that every single state in the United States has to give its citizens at least the rights granted by the Federal Constitution. They can choose to give more rights or play with the rights that the federal Constitution gives, but our Federal Constitution will always have the last word.

Ok. So, we’ve got the Federal Constitution and then every state has their own Constitution, wherein they can outline the rights state citizens have.  Some states even give extra rights to their citizens, but every state  has to at least give the rights granted by the federal Constitution. But different states have different laws – like in New Hampshire, you can get your driver’s license at 15.5 years, but in Massachusetts you have to wait until you are 16.5. But those 15.5 year olds can drive in to Massachusetts and their drivers’ licenses will still be valid… why?

Full Faith and Credit Clause - Because of the Full Faith and Credit Clause.  This is a part of the federal Constitution that says that states have to respect the public acts, records, and proceedings of other states. So Massachusetts has to say ok to those 15.5 year old NH drivers.

So if states have to respect the public acts, records, and proceedings of other states… shouldn’t that mean that say… North Carolina has to respect a same-sex marriage that is valid and legally recognized in Massachusetts? Sigh. This is where things get tricky.

The Defense of Marriage Act (DOMA) – Many years ago, Bill Clinton made a really big mistake. It wasn’t Monica. It was DOMA.  In 1996, he signed DOMA into law, effectively destroying the Full Faith and Credit Clause as it applied to marriage.  DOMA granted individual states the right to IGNORE any public act, record, or judicial proceeding having to do with marriages from another state. What this means is that a valid marriage license from Massachusetts could be considered invalid in say, North Carolina, under DOMA.

In addition, DOMA also stated that the word “marriage” under basically any federal law or ruling means a “legal union between one man and one woman.”

Finally, DOMA also had a provision that would allow states to amend their state Constitutions to define marriage as between a man and a woman.

Impact of DOMA on Fed and State Law – This is where the wild rumpus starts. Under DOMA, North Carolina has a right to amend its Constitution to define marriage as between a man and a woman.  And under DOMA, North Carolina can choose to ignore marriages from other states. So technically, even though it pains me to say this, North Carolina was completely ok in amending their constitution under the DOMA legislation.

But the big question is, Is DOMA Constitutional? Does it work under the Federal Constitution?

What do you think?  Does it violate the Full Faith and Credit Clause?

We’ll jump into those questions and what Obama’s statement supporting same-sex marriage, Holder’s announcement to no longer defend DOMA, and society’s changing views of marriage next time… until then, what do you think about DOMA and NC’s decision?

No Court, No Justice, No Freedom: Law Day 2012

Happy Law Day, lovers!

(Photo credit: Wikipedia)

Every year around April 25th, I start getting bombarded with emails from my law school, from the school where I teach, from various bar associations, telling me about upcoming Law Day events happening on May 1st. And every year, I give these emails a cursory skim and go on with my day.

I mean, I am a lawyer. Law Day is for people who need to be reminded of the law, right? Not for people who are so entrenched in the law that they accuse the Bruins of “intentionally inflicting severe emotional distress” on them when they lost Game 7 in the playoff series. Watch your back, Thomas. I’m including you as a co-defendant in this suit.

But the thing is that I spend most of my days jokingly chastising my students for not being aware of the world around them/getting involved and here I am completely unaware of and uninvolved in any Law Day happenings. So this morning, I decided that this year will be different. And so, I typed Law Day into the great google machine.

Turns out, this year’s Law Day theme is “No Court, No Justice, No Freedom” and that actually hits pretty close to home. You see, Massachusetts’s court system is facing a financial crisis.  Because of decreased funding, many district courts in MA have been forced to shut down for chunks of time during the day. (In fact, as I write this I can’t even get through to the recording at one district court to provide you with the hours it is closed. I’ll just assume it’s closed now.)

Court closings for brief periods of time might not seem like a big deal, but they’re a small symptom of a big problem. Courts are woefully understaffed – by admins, clerks, court officers, secretaries – the lifeblood of our court system.  As a result, citizens have decreased access to justice and often the access they do have is hampered by the overburdened system itself.  Court rooms are left without court officers – threatening the safety of litigants, litigants are left without interpreters – preventing any understanding of the proceedings, and children are often left without the benefit of a Guardian Ad Litem – preventing effective advocacy for the interests of the child. (The Mass Bar Association has a wonderful article detailing the effects of decreased funding.)

These are the easy to identify problems resulting from underfunded and understaffed courts, but there are many other problems created and compounded by this financial uncertainty.  Pro se litigants (people who represent themselves in court, often because they cannot afford a lawyer) are often left without any resources to help them through the legal process.  Court rooms are scary places and without any helpful resources, the justice being served to many isn’t very tasty.

And those resources and people cost money. The American Bar Association President, Bill Robinson III reminds us on this Law Day “All of us must have and protect our right and our freedom to use courtrooms when we need to.  That courtroom must be open to protect families.  That courtroom must be open to keep the wheels of justice turning.  That courtroom must be open to defend our individual rights to prove again and again that we continue to be a free society.  All of that takes more money… not less and less money for our courts.”

So I guess Law Day is a pretty big deal to me… and I didn’t even know it.

If you’re looking for more Law Day resources, check out the ABA’s website: http://www.americanbar.org/groups/public_education/initiatives_awards/law_day_2012.html

 

The EEOC – Focusing on the Word Equal… finally.

(Photo credit: Wikipedia)

On April 20, 2012, the Equal Employment Opportunity Commission issued a groundbreaking decision extending protection under federal employment discrimination laws to transgender persons, stating “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex and such discrimination therefore violates [the federal employment discrimination law].”

Lovers, I am aware that many of you are reading that quote and thinking to yourselves “ooook… this seems obvious.” And to you I say “I KNOW, RIGHT?!”

Unfortunately, this is the very first time the EEOC has made such a pronouncement.  In fact, the Equal Employment Opportunity Commission has a scary/weird history of being fairly unequal in its decisions.  (Like the guy who was fired from his job as an admin at the EEOC because he was gay. Yes. From the Equal Employment Opportunity Commission. I can’t make this stuff up.)

In addition to of the EEOC’s checkered past, there have also been some pretty famous cases that have refused to recognize an action for discrimination based on sex under Title VII for transgender persons.  One of the most famous decisions is Ulane v. Eastern Airlines 742 F.2d. 1081 (1984) in which a pilot was fired from her position at Eastern Airlines following her sex-reassignment surgery.  When she appealed her firing, the Seventh Circuit Court of Appeals basically told her that since the discrimination wasn’t based on her sex as a female, it didn’t count as sex discrimination under Title VII.

The Ulane decision sheds light on one of the biggest continuing problems facing transgendered persons when it comes to our system of laws. – That for years, our legal system has failed to recognize the distinctions between sex and gender as well as the intersections between the two terms.

Sex is our biological make-up – what internal and external genitalia we’re born with, what genes we’re born with, and what our secondary sex characteristics are (like breasts or facial hair). There’s a false assumption that male and female are the only two sexes – and a quick perusal of all of the different variations in each of these sex-characteristics shows us that there are more than 2 sexes.  Anne Fausto-Sterling has a great article that goes through all of this: The Five Sexes: Why Male and Female are Not Enough, if you want a more in-depth sciency explanation.

Gender is a construct. It can be based on our biological make-up, but it can also be based on societal views and norms, and our own choices.  Gender is fluid and people’s gender identity changes throughout their lives based on all of the above factors. To oversimplify, think about what it meant to be a woman when your great grandma was growing up.  Is that gendered identity the same for women today?

This distinction and intersection between sex and gender is important because courts like the Seventh District and administrative agencies like the EEOC were reading Title VII to only cover discrimination on the basis of sex.  And since Karen Ulane was fired because she was transgender – which the Court reasoned was gender identity and not her biological sex – her firing was NOT CONSIDERED unlawful discrimination.  In fact, in the Ulane decision, the court tells us that if Congress had wanted Title VII to cover discrimination on the basis of gender, they would have written the legislation that way.

Sigh.

Ultimately, decisions like Ulane reigned supreme and persons who were fired on the basis of their gender identity had no recourse under federal law for discrimination claims.  Luckily, a whole bunch of states realized how ridiculous this was and decided to extend equal rights to their transgender citizens. But even if your state has an anti-discrimination law, there was still no federal recourse.  So if you were discriminated against in your federal employment, you didn’t have a federal cause of action. (There were a bunch of district court decisions that read Title VII as protecting transgendered person, but no big pronouncement.)

And then came April 20, 2012.  In its decision, the EEOC explicitly states that Title VII’s prohibition of sex discrimination proscribes gender discrimination and not just discrimination on the basis of biological sex and acknowledges that the term gender encompasses not only a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity. Plus, the EEOC does a pretty good job of providing some snark, stating “applying Title VII in this manner does not create a new ‘class’ of people covered under Title VII [...] Rather, it would simply be the result of applying the plain language of a statute [...] to practical situations.”

This decision has wide-reaching ramifications.  First, it doesn’t just apply to public employers/ees, it also applies to private employees. Second, it’s not just at the federal level, it has power at the state level. And the most exciting piece of all?  Those quotes I provided above are examples of reasoning at the heart of the decision that should mean that federal bans on sex discrimination in other areas, like housing and education will also cover transgender people.

WHAT? EQUAL RIGHTS UNDER THE LAW? No kidding! I mean, there’s still a lot of work to be done – like passing a federal Employment Non Discrimination Act that would cover sexual orientation and gender identity discrimination – but this decision deserves a celebration.

Props to the Transgender Law Center for such amazing work in bringing this case!

Related articles

• Transgender Workers Now a Protected Class, EEOC Rules (blogs.findlaw.com)
• EEOC Ruling: Trans Discrimination Violates Title VII (bilerico.com)
• Employment Opportunity Commission Ruling Protects Transgender Individuals From Workplace Discrimination (thinkprogress.org)
• U.S. Government Says Transgender People Protected Under Law (news.yahoo.com)